by Kenneth Eade
The pilot has to decide whether or not it is safe to take off. If he or she decides that visibility is too poor, or that the aircraft is not sound enough to take off, that plane is not going anywhere.”
Brent crossed his arms at the wrists in front of himself, bringing them apart, like an umpire giving the “safe” signal at second base.
“It is only when the pilot decides, to an abiding conviction, that all systems are go, that the plane will take off. Otherwise, it stays on the ground, and everyone gets off. If the pilot has a reasonable doubt as to the safety of the plane, it will stay on the tarmac until that doubt has been resolved or a substitute plane is brought in. You, ladies and gentlemen, are the pilots in this case. If you have a reasonable doubt, as to an abiding conviction, about any element of the prosecution’s case, it is your duty to acquit Nancy Haskins. She comes into this Court, presumed as an innocent woman, and this case stands or falls entirely on what the People have presented.
“Let’s talk about Mr. Chernow’s puzzle analogy. Each piece of evidence that he presented is a piece of that puzzle. If you find that any one element of the People's case – any one piece of the puzzle – has not been proven beyond a reasonable doubt, you must find Nancy Haskins not guilty, even if you think that she might be guilty. Your decision is not whether you think she is guilty or not. What you feel about her innocence or guilt does not come into the equation. It is whether you think that the prosecution has proven every element it must prove beyond a reasonable doubt that you must decide. I am going to point out to you what pieces are missing in the puzzle and why the prosecution has not met its burden of proof.
“If the elements of this case are pieces in the puzzle, then you must examine each one to ascertain if it has been proven beyond a reasonable doubt. The first piece of the puzzle is the cause of death. Mr. Chernow says it was caused by poisoning. You may think that this is an easy part, but it’s not. The only way to clinically prove that it was ricin that killed Barbara Densmore is a urine test on a sample that was sent to CDC and thereafter sent out to their Laboratory Network. Neither this sample, nor any test confirming any ricin in the sample is in evidence, so we must assume that no positive results exist.
“Dr. Perez says that there is another way to confirm ricin poisoning, and that is to look for ricin in the environment or vicinity of where the death occurred. You’ve heard testimony that the death occurred at Barbara Densmore’s home, which is three blocks away from Nancy Haskins’ home. You’ve heard testimony that no ricin was found on Barbara Densmore’s clothes; nor was any ricin found in her house – none! You’ve heard testimony from Dr. Orozco, who is also a medical examiner, that Ms. Densmore’s symptoms are the same symptoms one would expect from a patient with tracheal or lung cancer, or influenza, one of the most common causes of death in the United States.”
Brent moved to the white board, and drew a “1” and a “2.”
“The Judge will instruct you that, if there are two reasonable inferences you can draw from the evidence, one of which leads to the conclusion that Mrs. Haskins is guilty, and one of which leads to the conclusion that she is not guilty, that you must select the inference that leads to the conclusion that she is not guilty. One inference is death by poison,” said Brent, as he wrote death by poison next to the number 1. “The other inference is either cancer or influenza,” which Brent wrote next to number 2, and turned back to face the jury.
“Both of these inferences are supported by the evidence in the autopsy and toxicology reports. You must pick number 2 – cancer or influenza – because that is the inference that leads to the conclusion that Nancy Haskins is not guilty. Therefore, this element, death by poison, has not been proven beyond a reasonable doubt.
“Let’s look at the cellophane wrapping and flower food package. The evidence shows that these items were contaminated with ricin. No doubt about that. It also shows that Barbara Densmore’s fingerprints were on the wrapping. No doubt about that. What it doesn’t show is when the ricin got into the packaging. Was it before or after Barbara Densmore handled it?
“What the evidence also doesn’t show is who put the packaging in Nancy Haskins’ trash can. Mr. Chernow’s going to tell you that this is the smoking gun. This is his entire case! Ladies and gentlemen, if you decide this is the gun, there is a huge problem, and that problem is that there are no fingerprints of the perpetrator on the gun.
“There’s an even bigger problem than that. The wrapping was found in an unsecured garage that was open to anyone who opened the unlocked side door. If someone was intending to frame Mrs. Haskins, this is the perfect way to do it. It doesn’t make sense that Mrs. Haskins would thoroughly clean the crime scene of every trace of ricin, dispose of the flowers that were never found, and then dispose of the last piece of incriminating evidence in her own trash can.
“Finally, Dr. Medina seems to think that any high school science student can make ricin, but, Ladies and gentlemen, Nancy Haskins is a 73 year old lady. Whipping up a batch of ricin poison from instructions on the Internet is not like following a recipe for chocolate chip cookies. There was no evidence of an oil press, protective clothing or anything found in her home. Only the cellophane wrapping and flower food package that had to have been planted by someone else.
Brent took to the white board again and drew another “1” and “2.” Mr. Chernow wants you to draw an inference from the evidence that Nancy Haskins put the packaging in her own trash can, in an open garage, with gloves on so she would not leave fingerprints,” Brent said, as he wrote next to number 1, then looked in the direction of Chernow, who was taking copious notes. The jurors looked at Chernow too. Brent had their attention.
“Then you have to ask yourself where are the flowers? And why would Nancy put the wrapping in her own trash can if she was careful enough to not leave any fingerprints? It would seem to me that someone who is calculating enough to whip up a batch of ricin, and rig it so that it would blow up in Ms. Densmore’s face would be too sophisticated to dump the flowers in one place that the police would never find, and throw the wrapping in her own trash can. The other reasonable inference you can draw from this evidence is that someone else went into the open garage and put the cellophane wrap there,” argued Brent, as he wrote next to number 2 on the board. “Therefore, this element has not been proven beyond a reasonable doubt.”
Brent could see the older women in the jury almost nodding in agreement to his argument. He poured himself another cup of water and continued.
“And what about Nancy’s testimony? Remember, she doesn’t have to prove anything, and she especially doesn’t have to prove that she didn’t do anything. But she did testify, under oath, and her testimony is evidence that you must consider, that she did not kill Barbara Densmore and she did not handle the contaminated wrapping.
“Remember the airplane analogy? There are too many pieces of the puzzle that are covered in reasonable doubt. So covered in it, it’s impossible to see the entire picture. Ladies and gentlemen, I ask you, if your pilot could see this out of the windshield of the cockpit, would you want to get on that plane?” Brent took a piece of paper out of his pocket, unfolded it and held it up between himself and the jury like a mask. The piece of paper had holes torn in it, and through the holes, the jurors could hardly see Brent’s face. He panned the paper in front of the jury box.
“I don’t think so. What about Felipe Corral and Gary Goldstein, who refused to testify on the grounds it may incriminate them? We know that Mr. Goldstein has an anger problem, and has had arguments with Ms. Densmore. We know that Corral is suspected of smuggling drugs, that he has assaulted my investigator, Jack Ruder, and that Ms. Densmore was always snooping around his house, looking for violations.
“As I told you before, ladies and gentlemen, this is not a game – it is not a puzzle. And you know in your minds and your hearts that the prosecution has not proven its case beyond a reasonable doubt. You have only one choice, and that is to find Nancy Haskins not guilty of murder in the first d
egree, not guilty of the lesser included charge of second degree murder, and that the special circumstance of murder by poison has not been proven beyond a reasonable doubt. Thank you.”
There was muffled applause coming from the gallery. Brent went to gather his notes, and realized that, out of the 30 pages of notes he had taken, he never got past page 5. He took his seat at counsel table with Nancy.
“That was a great argument, Brent,” she said, with tears glistening in her eyes.
“Mr. Chernow?”
Bradley Chernow took the podium, set down his notes and began his rebuttal.
“Ladies and gentlemen, Mr. Marks is a very, very clever lawyer. After all, this is a very serious matter. Serious to his case, to be sure, but also serious to the People of the State of California. This isn’t a jungle we live in. And the reason it’s not a jungle is because we live by laws here. In our society of laws, there must be punishment to prohibit the act of murder. If there is not, then there would be no safety on our streets. The Judge will tell you that reasonable doubt does not mean the erasure of all doubts in your mind. You may have doubts! But, looking at all the evidence as a whole, you should have no reasonable doubt – you should have an abiding conviction that the defendant is guilty.
“Look at the inference Mr. Marks wants you to draw about the cellophane wrapping. The evidence shows that the wrapping was found in the garbage can inside of Nancy Haskins’ garage, not anyone else’s garage, and not on the street. Her garage in her home,” he declared as he pointed his finger at Nancy.
“As I told you before, there is hardly ever direct evidence of a crime. As Dr. Medina testified, finding out how to make ricin is as easy as looking up ricin on the Internet. And anyone can buy castor beans to make the ricin. If Nancy Haskins had enough malice and forethought to kill Barbara Densmore, which she did, a few details such as protective clothing and an oil press were not going to stop her.
“There is no evidence at all that has been presented that anyone else put the plastic wrap in the garbage from which you may draw that inference number two. Inference number two doesn’t exist. The only evidence of inference number two is the defendant saying, I didn’t do it! Ladies and gentlemen, the prisons are filled with defendants who said they didn’t do it. That is not evidence from which you can draw an inference that someone else put it there. There is absolutely no evidence that anyone other than the defendant may have put it there.”
Brent was truly worried now. Not only was Chernow’s argument coherent and on point, it actually made sense. In all of his preparation, Brent had tried to realize all the weaknesses in his case. Perhaps he was too zealous in his representation to realize them. He knew that Nancy was innocent, he felt it in his heart, but maybe she would have been better off with a lawyer who wasn’t convinced of her innocence. Maybe the truth really wouldn’t set her free.
Brent had always told his clients that you can be convicted of anything. Maybe it was true. The prosecution’s job was to seek convictions. The District Attorney was an elected position and more convictions meant more votes. The prosecution didn’t care what the truth really was – it cared what its truth was. The police and the D.A. worked so closely together as “law enforcement” that there was almost an unwritten code to mislead. Brent had often caught cops on the witness stand “filling in the blanks.” That’s why lawyers always advised clients to never talk to the police. When they say whatever you say may be used against you, they mean it! Once they have decided who to go after, they do it like an assassin’s assignment. Brent held on Chernow’s argument attentively.
“If the defendant threw the wrapping in the trash, and there was ricin on it, and Barbara Densmore’s fingerprints were on it, the only inference you can draw from this evidence is that this was the package which contained the deadly poison that killed her and that the defendant put it there. The fact that it had the victim’s fingerprints on it is enough to confirm Dr. Perez’ diagnosis of ricin poisoning no matter where it was found.
“Ladies and gentlemen, don’t be fooled by the trickery of the defense and Mr. Marks’ props. The People have proven beyond a reasonable doubt that Nancy Haskins,” he said, pointing at her again, “murdered Barbara Densmore with poison, and you must return a verdict of murder in the first degree with special circumstances.”
The hush in the courtroom turned into a collective sigh, then the murmur of whispered conversation took over.
“Order, order,” said the Judge.
“Quiet in the courtroom please,” said the Bailiff.
CHAPTER THIRTY-NINE
Judge Curtis proceeded to read the instructions to the jury, verbatim, which dragged on for an hour. The audience in the gallery was fairly disappointed and bored, and most of them cleared out, except, of course, for Frances Templeton.
The Judge carefully read and explained the definition of murder, the difference between first and second degree murder, the presumption of innocence, and the principle of reasonable doubt.
The jurors tried to follow the instructions, but began nodding off after the first half hour. When the Judge had finished reading the instructions, he excused the alternate jurors and sent the jury to the jury room to deliberate.
“Mr. Brandon and Mrs. Heath, you are both excused as alternate jurors. If for some reason, one of the jurors is not able to serve, we will recall you. I would like to thank you for your time and your service.”
Suddenly, a feeling of exhaustion overwhelmed Brent, so much so that he felt like crawling under the counsel table and taking a nap.
Nancy hugged Brent as he was packing up. “I don’t know how to thank you,” she said, with tears streaking down her cheeks. “What happens next?”
“We wait for the verdict,” said Brent.
Bradley Chernow paused between the counsel tables and shook Brent’s hand.
“Good job, counselor,” Brent said.
“Thank you,” Chernow replied, and left. Perhaps it was the fatigue of the battle, or maybe he finally realized that this was not a personal contest, and that Brent was not a grandstander, just a lawyer like he was.
After Brent briefed the reporters for about half an hour, and they cleared out, he said good bye to Nancy and Jillian and trudged out of the Courthouse.
As Brent ambled down the corridor, with vision of a nice warm bed dancing in his head, that little gnat Frances Templeton came up to him and touched him on the sleeve.
“Can I talk to you?”
“Frances, I don’t think we have anything to say to each other.”
“I just want to ask you a question.”
Brent stopped dead in his tracks, and put down his briefcase next to his rolling case of trial notebooks.
“What?” he asked, with impatience.
“It’s a legal question.”
Great, thought Brent. He was always the most sought after person at the party, because everyone wanted to ask a free legal question. It was usually my brother or sister, this and that, and always a waste of Brent’s time.
“What’s the question?” he asked, against his better judgment.
“It’s completely confidential.”
“Yeah, yeah.” Brent was too tired to argue, and all he wanted to do was escape.
“If I killed somebody, and then framed the murder on someone else, could I be tried for both crimes, and what kinds of defenses should I use?”
Brent instantly felt a pain in his gut, like someone had kicked him in the stomach with their boots on. He just stared at Frances, open mouthed and in shock.
“And if you represented the person I framed, would it be a conflict of interest?” she added, innocently, batting her eyelashes.
“You bitch!”
“Come now Brent, is that all the brilliant white hot lawyer Brent Marks can say? You bitch?”
Suddenly Brent realized. “You cooked the books, didn’t you? You were skimming money from the Association and you cooked the books! No wonder they were so perfect! They’re all fake! You had
to kill Barbara because she knew!”
“It’s over Brent, win or lose. They’re sure that Nancy did it. If they fry her, the case is closed. If they acquit her, the case is closed.”
“What makes you think that?”
“Your buddy Chernow told me.”
Frances thought she had it all figured out, and she probably did.
“Just remember Brent, whatever I tell you is attorney client privileged. I checked. It’ll always be our little secret.”
With that, Frances blew Brent a kiss, turned around and left.
Brent felt doubled over, as if he were wounded. This despicable practice of criminal law. No wonder he didn’t want to do it anymore. He remembered the classes he had taken on legal ethics. Those “legal questions” at parties were enough to make you the lawyer of the drunken fool who had asked the question, and real liability always attached to that. By the same token, once the veil of confidence was invoked, the attorney client privilege attached.
Brent was trapped, pushed against the corner by a murderess and imprisoned there by the attorney client privilege, something he had taken an oath to preserve and a mantra that he had lived by for over 20 years. He now questioned the very existence of his profession, and his choice of it as his own. If Nancy should be condemned and he held the key to her prison cell, would he ever be able to live with himself?
CHAPTER FORTY
Brent went back to the office. There was nothing more to do except wait for the jury. The court would call, and then he and Nancy would get down to the courthouse for the final chapter in the case of People v. Haskins. He thought about going into the office later, but it had been neglected for so long, he headed straight there.
An enormous pile of mail was stacked on his desk, opened and with sticky notes that Melinda had placed on some of the more important ones. That stack competed with one smaller in volume, but equal in number of phone messages, also with sticky notes. As Brent went through the messages, he had a wrestling match in his mind over the attorney-client privilege. The attorney-client privilege covered any communication between an attorney and his client. It didn’t matter that Frances had not paid him, because she had asked for legal advice, and that made him her lawyer in the eyes of the law. It was the trap that every ethics course always teaches a lawyer to watch out for. They always say, don’t talk to people at parties – you’ll end up in a malpractice suit someday – and Brent had fallen right into it. But the privilege only prohibited Brent from revealing communications. He was prohibited from ever revealing what Frances had told him outside the courtroom.
